J. A11011/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY S. MINA, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

:

ENET ADVERTISING, 

OPTIMA WEBDESIGN, RONALD SHUR 

AND NICKOLAI POTAPOV

:

:

:

No. 3171 EDA 2013

Appeal from the Order Entered October 9, 2013,

in the Court of Common Pleas of Chester County

Civil Division at No. 2013-02649

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 16, 2015

Appellant appeals from the order dismissing his complaint with 

prejudice. Finding no error, we affirm.

On November 11, 2011, appellant and appellee entered into a written 

agreement wherein, in exchange for $25 per month, appellee agreed to host 

an internet website advertising appellant’s business. There was also a 

one-time charge of $200. The website was apparently created, but was 

never precisely to appellant’s liking; consequently, over a period of months, 

appellant communicated numerous changes that he wanted made to the 

website. On the other hand, there were also later communications from 

appellant to appellee directing it to make no changes to the website. When 

appellant subsequently expressed a desire to have another entity host his 
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website, he claims appellee would not provide access information to its 

website.

Ultimately, on March 15, 2013, appellant filed a pro se complaint. 

The first count presented a vague claim sounding in both breach of contract 

and fraud. The complaint also contained three additional counts, all seeking 

injunctive relief in the amount of $222,222 per day, until appellee provided 

all website access information.

On May 7, 2013, appellee responded with a motion to dismiss the 

complaint on the bases that the breach of contract claim failed to state any 

damages or any basis for determining damages, and that the fraud claim 

was not pleaded with sufficient particularity.

Oral argument was heard on September 12, 2013. Prior to the 

hearing, appellee apparently submitted a memorandum to the court that 

also argued that appellant’s tort claim was subsumed by the breach of 

contract claim pursuant to the “gist of the action” doctrine. On October 9, 

2013, the trial court dismissed appellant’s complaint. According to the trial 

court’s opinion, it did so with prejudice because it was undisputed during the 

hearing that appellee had performed the work required under the agreement 

and there was no breach, and also that appellant could not possibly state a 
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claim for fraud even if permitted to amend the complaint.1 (Trial court 

opinion, 10/31/14 at 2-3 (by our count).) This timely appeal followed.

Appellant raises the following issues on appeal:

1. Judge Braxton abused his discretion dismissing 

Plaintiff’s Breach of Contract claim because 

Plaintiff’s Complaint stated an agreement that 

was made between Plaintiff and Defendant, an 

agreement that Plaintiff paid Defendant for and 

an agreement Defendant refused to fulfill. A 

jury is to determine whether a contract has 

been proven, its terms and extent. O’Neil v. 

ARA Services, Inc., 457 F Supp. 182 1978 U.S. 

Dist. Lexis 16125, 151 LRRM 4846 (E.D. Pa. 

1978)

2. Judge Braxton abused his discretion dismissing 

Plaintiff’s Fraud claim because Plaintiff’s 

Complaint stated an agreement that was made 

between Plaintiff and Defendant, an agreement 

that Plaintiff paid Defendant for and an 

agreement Defendant refused to fulfill while 

promising repeatedly to be fulfilling promised 

agreement (While a mere breach of a promise 

does not constitute fraud, nevertheless, fraud 

may be predicated on the nonperformance of a 

promise in certain cases where the promise is 

the device to accomplish fraud Pichler v. 

Snavely, 53 Lanc. Rev. 43 (Pa. Com. Pl. 

1952)).

3. Judge Braxton abused his discretion by 

allowing Defendant to enter another defense to 

Plaintiff’s Complaint at September 12, 2013 

hearing because Judge Braxton told Plaintiff on 

May 20, 2013 that oral argument was being 

heard on Defendant’s Motion to Dismiss 

Plaintiff’s Complaint on May 20, 2013 and 

Plaintiff was not entitled to another oral 

 

1 We note that appellant has failed to have the hearing transcribed, 

rendering it impossible to review the trial court’s conclusions in this regard.
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argument. Plaintiff had yet to file a response 

to Defendant’s Motion to Dismiss filed May 7, 

2013 and Judge Braxton found on May 20, 

2013 that Plaintiff was unprepared for the 

May 20, 2013 hearing which Court 

Administration scheduled as “pre-trial 

conference”, as such, Judge Braxton held oral 

argument on the Motion to Dismiss on May 20, 

2013. A true and correct copy of Defendants 

[sic] argument memorandum which includes 

defenses not raised in Defendant’s Motion to 

Dismiss filed May 7, 2013, not heard by the 

court on May 20, 2013 but allowed to be raised 

by Defendant on September 12, 2013 is 

attached hereto as Exhibit B.

4. Judge Braxton abused his discretion by 

dismissing Plaintiff’s Complaint prior to 

Discovery because Plaintiff filed a Notice to 

Attend and Produce and Motion to Compel 

Discovery on August 21, 2013 that Defendant 

refused to comply with. The items Plaintiff 

requested in Discovery and in the Notice to 

Attend and Produce were all pertinent and 

relevant to claims set forth against Defendant.

5. Judge Braxton abused his discretion by 

dismissing Plaintiff’s Complaint because 

Plaintiff and Defendant presented conflicting 

testimony (while Plaintiff had evidence to 

support his argument) and under the rules of 

general application, questions of fact upon 

conflicting evidence are to be determined by 

the jury, while questions of law are to be 

determined by the court. Carnicelli v. Bartram, 

289 Pa. Super. 424, 433 A.2d 878 (1981).

Appellant’s brief at 6.

Preliminarily, we admonish appellant that engaging in repugnant 

character assassination against both the trial court and a particular member 

of this court does nothing to advance his cause. (Appellant’s brief at 4 and 
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9.) Such ad hominem attacks are juvenile, and to the extent that they 

challenge the integrity of the judges at issue, they instead give us pause to 

doubt appellant’s own integrity. Appellant’s bizarre rant on page four of his 

brief is likewise disturbing. (Appellant’s brief at 4.)

Turning now to the case at hand, we note that the motion to dismiss 

filed in this case should have more properly been styled as a preliminary 

objection in the nature of a demurrer. See Pa.R.C.P., Rule 1028(a)(4), 

42 Pa.C.S.A. As such, the following standard of review is applied:

The standard of review we apply when 

reviewing a trial court’s order granting preliminary 

objections in the nature of a demurrer is as follows:

Our standard of review of an order of the 

trial court overruling or granting 

preliminary objections is to determine 

whether the trial court committed an 

error of law. When considering the 

appropriateness of a ruling on 

preliminary objections, the appellate 

court must apply the same standard as 

the trial court.

Preliminary objections in the 

nature of a demurrer test the legal 

sufficiency of the complaint. When 

considering preliminary objections, all 

material facts set forth in the challenged 

pleadings are admitted as true, as well 

as all inferences reasonably deducible 

therefrom. Preliminary objections which 

seek the dismissal of a cause of action 

should be sustained only in cases in 

which it is clear and free from doubt that 

the pleader will be unable to prove facts 

legally sufficient to establish the right to 

relief. If any doubt exists as to whether 
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a demurrer should be sustained, it 

should be resolved in favor of overruling 

the preliminary objections.

Liberty Mutual Insurance Co. v. Domtar Paper Co., 77 A.3d 1282, 1285 

(Pa.Super. 2013) affirmed, A.3d , 2015 WL 1888572 (Pa. Apr 27, 

2015), quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011).

We begin by finding that appellant has effectively waived his issues on 

appeal. In the argument section of his brief, appellant merely repeats his 

Statement of Questions Involved from page six of his brief, but without any 

additional relevant analysis or discussion. Each issue described in the 

Statement of Issues Involved amounts to two or three sentences. Such 

spare argument does not allow meaningful appellate review. “[W]here an 

appellate brief fails to provide any discussion of a claim with citation to 

relevant authority or fails to develop the issue in any other meaningful 

fashion capable of review, that claim is waived.” Umbelina v. Adams, 34 

A.3d 151, 161 (Pa.Super. 2011), appeal denied, 47 A.3d 848 (Pa. 2012), 

quoting In re W.H., 25 A.3d 330, 339 (Pa.Super. 2011), appeal denied, 

24 A.3d 364 (Pa. 2011) (citations omitted). We find appellant has waived 

his claims. Nonetheless, for purposes of any further attempt at review by 

appellant, we will briefly indicate why his complaint was properly dismissed.

In his first issue, appellant asserts that the breach of contract claim 

was improperly dismissed. “A breach of contract action involves (1) the 

existence of a contract, (2) a breach of a duty imposed by the contract, and 
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(3) damages.” Kirschner v. K&L Gates LLP, 46 A.3d 737, 755 (Pa.Super. 

2012), appeal denied, 65 A.3d 414 (Pa. 2013). After the hearing on the 

motion to dismiss his complaint, the trial court stated:

Here, viewing the complaint in its entirety, it was not 

abundantly clear whether the facts averred, if proved 

true, would establish that plaintiff suffered damages 

from the alleged actions or inaction of defendants. 

Upon consideration of the positions advanced by the 

parties at oral argument, it became apparent that 

plaintiff could not state a claim in breach of contract 

if given leave to amend the complaint. At oral 

argument, there was no dispute as to the subject 

matter and terms of the agreement between the 

parties. It was also undisputed that defendants 

performed the work required under the agreement 

by creating the website with the pictures and 

information provided by plaintiff to defendants, and 

that the website is running. For this reason, we 

believe that plaintiff cannot state a claim in breach of 

contract against defendants. Thus, we find plaintiff’s 

first issue to be without merit.

Trial court opinion, 10/31/14 at 2 (by our count).

At the hearing, the trial court indicated that there was no evidence of 

any breach and that it was not disputed by appellant. Thus, the trial court 

decided as a matter of law that there was no breach. As noted earlier, 

appellant’s failure to provide us with a transcript of this hearing renders it 

impossible for this court to review the trial court’s conclusion of law. 

Moreover, our independent review of the complaint itself does not lead us to 

conclude that the trial court was in error. We find no error.

In his second issue, appellant contends that the trial court erred in 

dismissing his fraud claim. A claim for fraud must be averred with 
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particularity. Ellison v. Lopez, 959 A.2d 395, 398 (Pa.Super. 2008), 

appeal denied, 968 A.2d 233 (Pa. 2009). “The test for fraud is: (1) a 

misrepresentation; (2) a fraudulent utterance; (3) an intention by the maker 

that the recipient will thereby be induced to act; (4) justifiable reliance by 

the recipient upon the misrepresentation; and (5) damage to the recipient as 

a proximate result.” Id. Appellant’s complaint contained none of these 

averments. Rather, the complaint contained precepts of fraud law, but no 

averments regarding appellee in particular. Basically, the complaint only 

stated that the website was not completed to appellant’s liking. Finally, the 

trial court concluded that even if given leave to amend the complaint, 

appellant could not state a cause of action for fraud. (Trial court opinion, 

10/31/14 at 3 (by our count).)

In his third issue, appellant argues that the trial court improperly 

permitted appellee to raise a defense that was not raised in the motion to 

dismiss. We assume, because he does not identify the defense, that 

appellant is referring to the gist of the action doctrine that was raised in 

appellee’s hearing memorandum but not in the motion to dismiss. The trial 

court did not dismiss any part of appellant’s complaint on this basis and 

there is no prejudice to appellant.

In his fourth issue, appellant complains that the trial court improperly 

dismissed the complaint before permitting discovery. Simply stated, 

discovery cannot go forward until a litigant has demonstrated that a cause of 
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action exists upon which discovery can be made. Appellant failed to 

demonstrate a cause of action.

In his fifth and final issue, appellant posits that the trial court erred in 

dismissing his complaint because the parties presented conflicting testimony 

at the hearing. Again, without a hearing transcript we cannot review the 

court’s findings that the existence of the agreement and appellee’s 

performance were undisputed, and that no breach of contract existed as a 

matter of law.

Accordingly, having found no merit in the issues on appeal, we will 

affirm the order below.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2015